The state of Tennessee executed Sedley Alley in the early morning of June 28 after a series of last-ditch appeals, an unusual 11th hour stay of execution, and a strongly worded order vacating the stay from a panel of the U.S. Court of Appeals for the Sixth Circuit. Given the Sixth Circuit's public dissension in recent years, including several sharply worded opinions and allegations of improprieties in death penalty cases, I suspect this case would have received more attention had it not been overshadowed by the close of the Supreme Court's term and several high-profile decisions.

Alley was convicted of the brutal rape and murder of Suzanne Collins, a 19-year-old Marine, whom he allegedly assaulted while jogging near Memphis, Tennessee. Although he initially confessed to the crime, years later he recanted his confession and claimed to be innocent. After his other appeals failed, Alley was granted a 15-day reprieve by Tennessee Governor Phil Bredesen so he could seek a court order for DNA testing of evidence from the crime scene. Alley's effort to obtain DNA testing failed, and his execution was rescheduled for June 27.

As usually occurs in death penalty cases, Alley's attorney's sought last-minute stays, but were rejected by the Sixth Circuit and the Supreme Court. Then, according to news reports, on the evening Alley was to be executed, his defense attorneys visited the home of Senior Circuit Judge Gilbert Merritt in a last ditch effort to halt Alley's impending execution.

Less than two hours before Alley was due to die, Senior Judge Merritt issued a stay of execution. The "hasty order" was "half-typed and half-handwritten" according to the Associated Press, but it did the job -- or so it seemed. Only two hours after the entry of Judge Merritt's stay, the three-judge panel responsible for hearing Alley's last appeal to the Sixth Circuit issued an order vacating the stay. The order, authored by Chief Judge Danny Boggs, had strong words for Merritt's actions, suggesting the stay by "a single circuit judge" was unseemly. Alley's claims had already been considered and rejected, so there was no basis for delaying the execution one more time. Tennessee Attorney General Paul Summers used even stronger language, calling Merritt's decision "highly irregular and in brazen violation of every rule that applies to this situation."

Not knowing a tremendous amount about the procedural aspects of habeas corpus claims and death penalty appeals, I am curious whether Judge Merritt's actions were, in fact, particularly "irregular" or unseemly. From the cases I have reviewed it did not seem that Judge Merritt was a partisan in the Sixth Circuit's prior feuds over death penalty cases. Judge Merritt has publicly expressed concerns that the public's desire for swift justice could result in the execution of innocents, and may well have been moved by the possibility that Alley was wrongly convicted. Whatever the reasons for the stay, it seems odd to me that a judge who had not been involved in the prior proceedings of this case would issue such a stay when stay requests had been repeatedly rejected by the Circuit, and stay applications to the Supreme Court were equally unavailing.

The application of the death penalty has divided the Sixth Circuit for some time, producing fiery opinions and allegations of judicial manipulation of cases to ensure given results. In one instance, a case was taken directly to en banc review, before the applicable three-judge panel could act. Cooey v. Bradshaw, 338 F.3d 615 (6th Cir. 2003). As a result, two senior judges assigned to the original panel were excluded from the case and a capital defendant's claims were accepted by the narrowest of margins. In another, dissenting judges alleged procedural irregularities in an en banc decision to stay an execution. In re Byrd, 269 F.3d 578 (6th Cir. 2001); 269 F.3d 585 (6th Cir. 2001).

Some judges on the court have intimated that their colleagues allow their personal opposition to the death penalty influence their actions on the bench. Judge Boyce Martin, for instance, has written that he does not believe the death penalty, as currently administered, can comply with due process. While he has not sought to adopt this perspective in a court holding, he regularly votes to delay or overturn capital sentences. Other judges on the court, such as Judge Boggs and Judge Alice Batchelder, are clearly unsympathetic to innovative arguments against validly imposed death sentences. Their written opinions suggest there is not a tremendous amount of trust among the Circuit's judges on these issues. [Note: Judges Martin, Boggs and Batchelder also traded allegations of impropriety concerning the Sixth Circuit's handling of the Michigan affirmative action cases.]

Given the context, and the current "disquiet" over capital punishment on the Supreme Court I found this to be an interesting case -- another example of drama on the Sixth Circuit. The information in the post comes from court opinions and published news reports (largely the AP and The Tennessean). I would appreciate additional perspective or information from readers who may be aware of relevant items I may have omitted.

UPDATE: Thanks to some of the commenters, here is a copy of Judge Merritt's order granting the stay; here is a copy of the order vacating the stay; and here is an article from the Nashville Post with some interesting details.

For those who want more legal background on the case, a search of the U.S. Court of Appeals for the Sixth Circuit's opinion database pulls up over one dozen opinions arising from Alley's conviction, including this unpublished opinion rejecting Alley's effort to obtain physical evidence for DNA testing, and this dissent from the denial en banc review concerning Alley's claim that lethal injection constitutes cruel and unusual punishment.

A VC reader wonders why I wrote below that Sedley Alley "allegedly" raped and murdered Suzanne Collins when Alley was long-ago convicted of the crime and his conviction withstood numerous appeals and petitions for post-conviction relief.

At what point does one stop saying allegedly? He's been convicted, right? Plus he confessed (although he later recanted). Does the fact that he claims the conviction is unjust entitle him to an "allegedly" in front of the crime or does the conviction plus review through SCOTUS mean his crime is now no longer alleged?

This is a good question, it was something I pondered when drafting the post, and I am not sure I have a solid answer. Given that I wanted the post to be neutral on the subject matter, and because he was making an "actual innocence" claim (however improbable), I figured there was no harm in putting it in. Yet, as the reader notes, saying the crimes are only "alleged" after conviction and appeal seems to imply that the court system is not fair.

In this particular case, Alley's claims of actual innocence are quite incredible, coming two decades after his confessions and conviction. It is true that the state opposed Alley's belated effort to seek DNA testing of available evidence, but even "negative" DNA tests on the available physical evidence would have been inconclusive and the case against Alley was quite strong. [Had the facts been otherwise, Alley would have likely succeeded in his efforts to obtain post-conviction testing in state courts.] Note that I strongly support post-conviction testing of DNA evidence when such testing was not available at the time of trial. In this case, however, I do not believe the effort to obtain such tests was based upon a plausible claim of actual innocence.

The disagreements over death penalty litigation continue on the U.S. Court of Appeals for the Sixth Circuit. The latest round comes from the case of Poindexter v. Mitchell, in which a three-judge panel unanimously upheld a capital defendant's claim that he received ineffective assistance of counsel during the sentencing phase, but in the process produced four opinions.

In 1985, Dewaine Poindexter was convicted of two counts of aggravated murder, among other crimes, and sentenced to death. After years of litigation, Poindexter filed a federal habeas claim. Among other things, Poindexter alleged ineffective assistance of counsel during the sentencing phase becase his counsel failed to conduct an adequate investigation of potentially mitigating evidence. On Monday, the Sixth Circuit upheld this claim, vacating Poindexter's death sentence pending a new sentencing proceeding in a unanimous opinion authored by Judge Suhrheinrich.

The disagreement among the judges was not over whether Poindexter should prevail. All three judges on the panel -- Suhrheinrich, Daughtrey, and Boggs -- agreed that existing precedent was clear. They disagreed over whether it was wise -- and how existing precedents might influence strategic choices made by defense attorneys in capital cases.

Chief Judge Boggs wrote separately "to note the continuing oddity of the circumstances of cases such as this." Boggs continued:

To put it bluntly, it might well appear to a disinterested observer that the most incompetent and ineffective counsel that can be provided to a convicted and death-eligible defendant is a fully-investigated and competent penalty-phase defense under the precedents of the Supreme Court and of our court. That is, the primary means by which a prisoner escapes the affirmance of a death sentence in this circuit has become a finding that "ineffective" counsel was provided at the penalty phase. Thus, if counsel provides fully-effective assistance, and the jury simply does not buy the defense, then the defendant is likely to be executed. However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever. [citations omitted]

Boggs further noted that whether "mitigating evidence" will reduce the likelihood that a capital defendant receives the death penalty is wholly speculative. The end result is that defense attorneys face a "moral hazard" in which any "sensible attorney" would be likely to reason as follows:

If I make an all-out investigation, and analyze and present to the jury every possible mitigating circumstance, especially of the "troubled childhood" variety, it is my professional judgment that I may thereby increase the probability of this extremely repellant client escaping the death penalty from 10% to 12%. On the other hand, if I present reasonably available evidence that I think has as good a chance as any other in securing the slim chance of mercy from the jury, I will have a 50-99% chance of overturning the extremely likely death penalty judgment 10-15 years down the road. I will thus have secured many additional years of life for the client, and he may very likely avoid capital punishment altogether.

Boggs made clear that he was not accusing the attorneys in this (or any other) case of making such a judgment, "consciously or unconsciously." Nonetheless, he noted, "our jurisprudence has made such a line of reasoning virtually inevitable for any defense attorney."

Judge Daughtrey took exception to Cheif Judge Boggs's concurrence, so she penned one of her own "in order to express my dismay at Judge Boggs's unjustified attack directly on both the cpiatal defense bar and indirectly on the members of this court." Daughtrey continued:

For the chief judge of a federal appellate court to state that it is "virtually inevitable" that "any mildly-sentient defense attorney" would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing. Such a comment is an affront to the dedication of the women and men who struggle tirelessly to uphold their ethical duty to investigate fully and present professionally all viable defenses available to their clients. It also silently accuses the judges on this court of complicity in the alleged fraud by countenancing the tactics outlined.

According to Dughtrey, if there are problems with finality in death penalty litigationk it is more likely due to the fact that "those lawyers representing the absolute pariahs of society are frequently hamstrung by a critical lack of relevant experience, an obvious lack of time and resources, or both."

Not to be left out, Judge Suhrheinrich also wrote his own brief concurrence, though only to agree with Chief Judge Boggs.

I agree with Judge boggs. I think Judge Boggs accurately points out the difficulties with the current legal doctrine concerning ineffective assistance of counsel in death penalty cases at the penalty phase. I do not share Judge Daughtrey's views of defense counsel in these types of case as my experiences have been different. [citations omitted]

This is not certainly not the last episode of Sixth Circuit dissension in death penalty cases, so stay tuned for the next chapter.

Last week the U.S. Court of Appeals for the Sixth Circuit issued another divided opinion in an death penalty case, Getsy v. Mitchell. Writing for the panel majority, Senior Judge Gilbert Merritt held that Jason Getsy's death sentence was unconstitutionally arbitrary under the Eighth Amendment "because like crimes are not being punished alike in the very same case." Explained Judge Merritt:

This is a contract murder case with irreconcilable jury verdicts leading one defendant to be sentenced to death and another — the defendant who initiated, contracted for, and paid for the murder — to be sentenced to life imprisonment.

If a jury in one trial did not find the alleged murder-for-hire scheme was a sufficiently aggravating circumstance to justify executing John Santine, the panel reasoned, a second jury could not reasonably find that it was a sufficiently aggravating circumstance to justify executing Getsy.

sentencing Getsy to death, while the arguably more culpable Santine received a life sentence for the very same crime, violates the Eighth Amendment, as construed by the Supreme Court in Furman and Enmund, and its prohibition of arbitrary and disproportionate death sentences.

In setting aside the death sentence imposed upon Jason Gesty for the murder of Ann Serafino, the majority today reaches beyond the arguments advanced by Getsy and announces a new rule of constitutional law. The majority holds that the Eighth Amendment and the common-law rule of consistency require us to invalidate Getsy's death sentence because a different jury failed to find the murder-for-hire specification at the later trial of the man who enlisted Getsy as the hired killer. In other words, because John Santine did not receive the death penalty, neither can Getsy.

Judge Gilman shared some of the concerns that motivated the majority opinion, but he rejected their reasoning as a matter of law.

Both the majority and the Ohio Supreme Court have expressed concern over the seemingly incongruous results from the separate trials of Getsy and Santine. I share their concern, recognizing
at the same time that reasonable people can disagree over the relative moral turpitude of the instigator of an assassination on the one hand and the killer who he hired to carry out the violent act on the other. Nevertheless, I do not believe that I am empowered to answer this philosophical question by bypassing the limitations that both Congress and the Supreme Court have placed upon this court's power to grant relief under the circumstances of this case.

While it is admittedly uncomfortable — especially in a death penalty case — to see two different juries reach inconsistent conclusions on similar evidence about the same episode, I don't believe that there's any reason to see legal error of any kind in the second jury's verdict. When a single jury reaches logically inconsistent verdicts in a single case, we can be certain from the verdict itself that the jury has somehow erred (in the sense, at least, of not following its instructions), and . . . the legal system ought to do something about inconsistent convictions in this setting (rather than just letting them stand, as the law now does). But when two juries reach logically inconsistent verdicts in separate trials, those verdicts supply no evidence that either jury has erred — let alone that the erring jury was "harsher" one.

I also would concur with Orin's assessment that this opinion is unlikely to be the last we hear of this case.

[Note: One of the attorneys for petitioner-appellant Jason Getsy is a colleague of mine at Case, but we have never discussed the particulars of this case -- and he knows far more about death penalty litigation than I ever will.]

UPDATE: As some of my previous posts on divisions within the Sixth Circuit have prompted heated comment threads, I encourage all to keep their comments civil and substantive. I believe it is possible to analyze and debate the merits of the judges' respective positions without descending into vitriolic and ad hominem attacks on the judges or other commenters.

There was lots of activity and acrimony relating to habeas corpus petitions on the U.S. Court of Appeals for the Sixth Circuit last week. On Thursday, the Court rejected a petition for rehearing en banc in Keith v. Mitchell over the dissent of four judges. The original three-judge panel split 2-1, with Chief Judge Boggs writing the majority for himself and Judge Gibbons and Judge Clay dissenting. Judge Clay dissented again from the denial of en banc review, joined by Judges Moore, Martin, and Cole. His dissent argued that Kevin Keith received constitutionally inadequate assistance of counsel during the mitigation phase of his trial.

Judge Martin wrote separately "to express again [his] dismay and frustration with the shortcomings of our approach to reviewing death sentences through habeas corpus appeals," and to suggest that legal representation in capital cases is potentially unconstitutional. Martin continued:

members of this Court have gone on record to second-guess the jurisprudence of the Supreme Court, and this Court, that requires counsel to conduct an adequate investigation of potential mitigating circumstances for purposes of capital sentencing, and mandates the reversal of convictions where this does not occur. [Here Martin cites the opinions by Chief Judge Boggs and Judge Suhrheinrich in Poindexter v. Mitchell, which I covered here.] This reasoning strikes me as demonstrating callousness and possible animosity toward the Sixth Amendment right to counsel.

Martin further intimated that this "animosity" likely influenced the outcome in this case.

On the same day, in Apanovitch v. Houk, the Sixth Circuit reversed and remanded the district court's denial of Anthony Apanovitch's habeas petition "[i]n light of the state's apparent failure to provide potentially exculpatory materials to Apanovitch prior to the filing of his petition" and the availability of evidence that had not undergone DNA testing. The panel's unanimous opinion was written by Chief Judge Boggs, joined by judges Daughtrey and Moore.

On Friday, a little bit of disagreement resurfaced on the Sixth, but not along the usual ideological lines. In Spisak v. Mitchell, the Sixth Circuit granted a death row inmate's habeas petition on the grounds that he received ineffective assistance of counsel during the mitigation phase and the judge gave improper jury instructions. If nothing else, "the decision is worth a read to see just how ineffective a capital attorney can be," observes Robert Loblaw on the Decision of the Day blog.

The majority opinion in Spisak, written by Judge Clay, rejected the inmate's other claims. Judge Moore wrote an opinion dissenting in part, as she would have granted the petition on additional grounds, specifically "the trial court's exclusion of expert testimony and evidence regarding Spisak's insanity defense and the trial court's refusal to submit the insanity defense to the jury."

Given that the panel of Judges Clay, Daughtrey and Moore was, in Loblaw's words, "every habeas petitioner's dream," and not representative of the current composition of the Sixth Circuit on habeas issues these days, it will be interesting to see whether the state seeks en banc review.

In August, in Getsy v. Mitchell, a divided panel of the U.S. Court of Appeals for the Sixth Circuit held that inconsistent jury verdicts for different defendants accused of the same crime were unconstitutionally arbitrary. I discussed the case here, and agreed with Orin's assessment that the case was a likely candidate for en banc review. It seems a majority of judges on the Sixth Circuit agree, as yesterday the court granted a petition for en banc review, vacating the initial panel decision. The order granting the petition was reported at Crime and Consequences and the Ohio Death Penalty Information blog. Thanks to a reader for the heads up.